In Arizona, criminal defendants often find themselves facing harsh consequences. It’s become a dark joke among the defense bar that when in doubt, assume the law screws over the accused. This reality stems from Arizona’s stringent criminal statutes, which differ from federal guidelines and contribute to the state’s remarkably high incarceration rate. In this blog post, we’ll delve into Arizona’s mandatory sentencing scheme, explore its peculiarities, and examine some perplexing outcomes.
Arizona’s Mandatory Sentencing: A Catalyst for High Incarceration Rates
Arizona has a unique approach to sentencing. When a person is convicted of a felony, the judge is bound by statutory guidelines, leaving no room for discretion. The legislature determines these sentencing schemes, making them mandatory. Consequently, Arizona incarcerates a staggering 868 individuals per 100,000 people, surpassing any other democracy on Earth. For comparison, the United States as a whole locks up “only” 664 individuals per 100,000, and the United Kingdom incarcerates 129. Prison Policy Initiative, last visited May 7, 2023.
The Question of Why
One might wonder why Arizona has implemented such an inflexible system. Does it effectively reduce crime? Not necessarily. Are the residents of Arizona more prone to criminal behavior? Unlikely. While financial motivations may be involved, we won’t delve into that topic here. Ultimately, Arizona’s laws are a product of its state legislature, and the enforcement of these laws, along with proving the committed crimes, leads to predictably high prison sentences.
Lessons from the Federal System: Mandatory Sentencing Reconsidered
As a fledgling criminal defense attorney, I discovered that the federal system once had mandatory sentencing similar to Arizona’s. However, in United States v. Booker, 543 U.S. 220 (2005), the Supreme Court struck down the mandatory nature of federal sentencing guidelines, empowering judges to exercise discretion and sentence outside of the guideline ranges. This landmark decision recognized the problems inherent in mandatory sentencing schemes and sought to address disparities in sentencing between different groups. Mandatory sentencing had proven highly problematic.
I feel I must confess I do not know why something that was deemed so clearly wrong in the federal system is allowed to continue in Arizona’s state system, but what I can tell you is that Arizona’s system leads to some really strange outcomes. Before I get into that, let me explain generally how Arizona’s sentencing system works.
The Peculiarities of Arizona’s Sentencing System
To understand how much time a client is facing in non-dangerous, non-sexual felony cases, two crucial factors come into play: felony history and the class of felony. Felony history refers to whether the client is a repetitive offender, categorized as a category 1, 2, or 3. Historical priors have specific definitions and implications, such as certain types of convictions or a predetermined number of prior felony convictions. Understanding the distinctions between historical and non-historical priors is essential. By the way, I am limiting our discussion to non-dangerous, non-sexual felony cases because dangerous felonies and sex offenses have their own mandatory sentencing schemes that function in a very similar way but have very different numbers. Perhaps I will do a separate blog post to discuss those kinds of cases, so stay tuned.
A category 3 repetitive offender is one who has at least two historical prior felony convictions. A category 2 repetitive offender has only one historical prior felony conviction or no more than two non-historical prior felony convictions. A category 1 repetitive offender has no more than one prior felony conviction that is non-historical. Don’t worry, dear reader, I will indeed explain the difference between historical and non-historical priors.
Some convictions are historical simply by definition. For example, a conviction for first-degree murder is always a historical prior conviction. Another surprising example of a “forever historical prior” (this is not a statutory term, but attorneys in practice use this phrase commonly) is Aggravated DUI. If you want to know what makes a DUI “aggravated,” check out my blog post from November 4, 2022, “Why is my DUI being charged as a felony?” The second simplest way for a prior to be historical is if it is the person’s third or more felony conviction. A person’s third felony conviction, and every felony conviction after that, is a historical felony conviction for the rest of that person’s life. The third, and trickiest way, for a felony conviction to be historical is if it is “recent” enough. For class 4, 5, and 6 felonies, they are historical for 5 years from the date of offense, meaning if the person picks up new felony charges within 5 years of the offense of the prior in question, the prior is historical. The time calculation can be complicated by periods of incarceration, which toll the time. For class 2 and 3 felonies, the length of time is 10 years. If you are wondering “What about Class 1 felonies?” the answer is there are only two crimes in Arizona that are Class 1, first-degree murder and second-degree murder. They both mandate a prison term, which means they are always historical.
Examining the Classes of Felonies
Once the offender category is determined, attention turns to the class of felony involved. Class 4 felonies exemplify the quirks of Arizona’s system. For a category 1 repetitive offender, a class 4 felony carries a sentencing range of 1 to 3.75 years in prison, with a presumptive sentence of 2.5 years. The judge may hand down a 2.5-year sentence without explanation. If a longer sentence is desired, aggravating factors must be identified, while mitigating factors must be cited for a shorter sentence. However, regardless of mitigating or aggravating factors, the judge cannot impose a sentence less than 1 year or exceeding 3.75 years. Examples of class 4 felonies include narcotic possession, aggravated DUI (excluding cases involving a child aged 15 or younger), and theft of property valued between $3,000 and $4,000. By comparison, a class 3 felony for a category 1 repetitive offender carries a range of 2-3.5-7.5 years.
The Absurdities within Arizona’s Statutory Definitions
Delving further into Arizona’s statutory definitions reveals perplexing discrepancies. Consider the contrast between stealing an item and
